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Thursday, August 04, 2022

Missing: A Legal Scholarship of Gerontocracy Outside the Judicial Branch

It took some time before the New York Times, a bellwether of conventional professional-managerial class sentiment, devoted much space to the simple fact that the President is pretty darn old for someone who occupies what is often treated as a highly demanding and stressful job. But eventually, a few weeks ago, it put the point squarely, in an article discussing his age, its possible effects on him, and the political issues it has raised. Since then, it has raised the issue several times, including a story addressing the point in the context of his recent first case of Covid. The politics of President Biden's age have become increasingly prominent; in a primary debate earlier this week, for example, two incumbent Democratic House members thrown into running for the same seat both demurred when asked to support Biden for reelection, with Rep. Carolyn Maloney adding, "I don't believe he's running for re-election." No doubt both of them were aware of polls suggesting an increasing public view that Biden is too old to run for re-election.     

Of course President Biden is not alone in facing these issues and concerns. Writers and readers at the Times and elsewhere delighted in drive-by diagnoses of then-President Trump's mental and physical state in relation to his age, as in "Glass of Water-gate." Trump, too, was too old to run for President the first time, in my view, and certainly will draw endless stories about his age and condition if he runs again. Elizabeth Warren was over 70 as a major primary candidate in 2020 and Bernie Sanders was older still, older than any of his primary competitors. After a long period of omertá and professional self-preservation within Congress, the San Francisco Chronicle finally went public in April with a well-reported story about Senator Dianne Feinstein's (D-88) possible mental decline, freeing up other papers to follow suit. Senate Majority Leader Mitch McConnell is 80. Senate Majority Leader Chuck Schumer is a spry 71 and his Whip, Dick Durbin, is 77. The three top leaders of the House are 82, 83, and 82 respectively. We know all this. But the numbers are striking when put in one place.

I raise all this because I find it surprising (and unsurprising) that we do not appear to have seen the emergence of any real, cumulative American legal scholarship centering on our gerontocracy, and specifically on presidential old age and decline. At least I don't think we have. If there were a body of recent work on the subject, on SSRN or in law reviews, I think I would have noticed. A few crude Westlaw searches don't appear to indicate much at all. A search for references to Richard Posner's book Aging and Old Age since January 2015 came up with only 12 hits; one was in an article focusing on the judiciary and the remainder were not relevant. (I use Posner's book not as an endorsement, although I enjoyed it, but because it would be a pretty conventional reference in a law review article on the subject.) A search in the same time-frame for variations on the word "gerontocracy," unconnected to any other term, came up with 21 hits. Five of those articles connected the term to the federal judiciary specifically; one referred in passing to Congress alone; the rest are irrelevant. No references in the same period to "presidential age" or "president's age" were relevant. The many references to "presidential incapacity" focused almost entirely on impeachment and the 25th Amendment. If, as I think is true, presidential age and its effects is an issue with many policy implications, it is certainly not one the legal academy has addressed much.

One reason that might be offered for this failure is that we don't know it's a problem. But that is one of the very policy issues in question. As the case of Senator Feinstein shows, it can take ages, so to speak, for anyone to be willing to discuss the issue of age-related decline in an elected official with the press, even on an anonymous basis. As against the minor concern that an elected official with great power might be unfit to serve, there are the major concerns of career suicide for staff and of fellow elected officials being ostracized and having donations and favors from leadership and party PACs dry up like the Sahara.

And that's just Congress, a multimember body of, shall we say, imperfect collegiality. Although every executive branch leaks like a sieve, there are leaks and there are leaks. The branch serves one person, and even then that person may be in actual contact with very few subordinate members of that branch. Most people who serve a president will have no idea what condition he or she is in, and those who do are more likely to conceal than to reveal what they know. Insofar as close executive staff are as likely to manage as to serve a president, they may see their primary job as preventing any possible revelations about decline or incapacity rather than airing those concerns, even internally. Unsurprisingly, the main New York Times story on President Biden's age provided strong evidence of this. Most quotes were not for attribution. Many of those consisted of "uniform[ ]" and no-doubt coordinated blandishments about how tremendously vital President Biden is. This presidency's primary press strategy has been one of keeping the President away from the press, and its primary structure has been less one of cabinet politics than of rule by chief of staff, a structure that constricts presidential access and exposure and facilitates presidential management by staff. One simply does not expect senior presidential staff to be honest or candid about such matters. If there have been any high-level meetings about presidential health, decline, or incapacity--and I am not suggesting there have been, or that there have been specific reasons to hold them other than the general fact of the president's age--we will read about them in books published only after the presidency ends. Then they will be much happier to talk and to burnish their records retrospectively. And presidents about whom concerns, sincere or political or both, have been raised about their age may, in a way that is hard to chivvy out, push themselves even if or when it is unwise to do so, precisely in order to allay those concerns. During his recent bouts with Covid, President Biden and his staff have been at pains to emphasize that he continues to work hard through the illness. He may well be in every condition to do so, but could he do otherwise without the inevitable recurrence of stories about his age? Might that be a consideration in his decisions about whether or how much to rest? In the Times story on President Biden's age, the deputy chief of staff, "who oversees his calendar," said that Biden resists having his schedule managed and is "driving additions to his schedule all the time." Is that in fact ideal? Could it be harmful? No doubt it is a function of his own personality, but is it also influenced by a politically driven desire to be seen as vigorous and in command? How much and when should this or any other president be managed, structurally or informally, to prevent such actions? (Consider President Kennedy, his health, and his many willing staff and medical enablers.) 

Another possible reason for the gap is that this is not "law," or law law, beyond the 25th Amendment and related legislation (which has been discussed in legal scholarship, although rarely in the context of age and decline and not, so far as I know, in reference to this particular president). That's not a convincing justification, for at least three reasons. The first and most obvious is that "it's not 'law'" hardly serves to deter legal scholars from writing reams and reams about a great many subjects. The second is that questions of presidential age and decline, of how to monitor it and deal with it, and so on are all obvious policy questions that might be addressed in any number of ways, structural and legal, and thus fertile ground for legal scholarship of a kind that is conducted regularly. 

The third is that the same "there's no 'law' there, beyond a couple of unhelpful words of constitutional text" justification has been no barrier to discussing judicial age and possible reforms around that issue. As I noted above, when legal scholars discuss things like gerontocracy or aging and decline outside of the subject of elder law, they are most likely discussing the Supreme Court and the rest of the federal judiciary. Those judges' tenure lasts "during good Behavior." They are thus, at least arguably, even less constrained than the post-25th Amendment executive. That does not prevent substantial discussion. A search for the terms "cognitive function" or "cognitive decline" within 200 words of "Supreme Court," "federal judges," or "federal judiciary" since 2015 comes up with a healthy 84 results, with a high relevance percentage. See, for instance, this fine and nuanced article by Francis Shen on "Aging Judges," and the largely approving reply from Judge Morris Hoffman. (Both writers have worked on the MacArthur Foundation Research Network on Law and Neuroscience. Its members' publications and a general law and neuroscience bibliography are available here.) The age of the current Supreme Court lineup is a popular topic for those who would like to reform the institution for outcome-neutral reasons or rejigger it for outcome-driven reasons. And this desire is not wrong! (Although in many cases it may be opportunistic.) Of the current members of the Court, one is 74 and one is 72. Both are approaching what we might take as one comparative benchmark, the mandatory retirement age for Canadian Supreme Court justices. Ruth Bader Ginsburg held on to her office, tenaciously, until she died at 87 and after long discussion about her age; Anthony Kennedy relinquished his seat at the age 0f 82, and Stephen Breyer recently left the Court at 83. In an area without much existing law, scholars have been happy to discuss the possible effects of aging on judges, to propose reform efforts, to argue against a "lifetime tenure" reading of the Good Behavior Clause, to carefully study and cite the ages of our sitting judges and Justices, and so on. Legal academic writing about presidential or congressional age and its effects has been far less active by comparison. Perhaps this is an artifact of the politics, and perhaps it's a consequence of the much-remarked and never-cured legal academic obsession with the Supreme Court and the federal judiciary. The discrepancy is remarkable nonetheless, especially in light of the fact that there is certainly no shortage of scholarship about other aspects of the political branches, including topics about which there is "no 'law'" or not very much.  

Finally, there is the politics of the question, which may have influenced the scanty attention legal scholars have devoted to it in recent years. (I have not gone back to see whether there was a spike in scholarship around questions of presidential age during the Reagan presidency.) One could imagine two different accounts of how politics might affect the amount of discussion. The first would be a knowing unwillingness to call attention to the president's age, either because it makes no current difference in light of the comparative ages of Biden and Trump (if Trump runs again and succeeds in the primaries; some of his competitors, such as Governor Ron DeSantis, are considerably younger) or because one doesn't want to call attention to any potential weak points about President Biden in light of the calamitous (on the putative writer's view) consequences of Biden or his party losing the presidency. It is hard to imagine that this has been a serious factor. I doubt this not so much because it would be an illegitimate and discrediting reason for a scholar--although it would--but because the question has been raised repeatedly, first around the primaries and then more recently after something of a pause, in public and political discussion. No amount of legal scholarship discussing presidential age and decline would alter the polls by a jot. The other possibility is motivated reasoning and an effective stamping down of cognitive dissonance. Legal scholars who are willing and eager to see serious questions about judicial retirement ages, and to think of aging and decline as one of those questions, may be unable to see that the same general questions apply to the executive (and legislative) branches (and may indeed be more relevant and graver in that context), particularly if they are committed to convincing themselves that, in the words of the anonymous and surely scripted sources who spoke to the Times, President Biden is "intellectually engaged" and so on.  

All of this is complicated by the fact that aging and old age raises a variety of complex questions. For starters, different individuals may decline at different rates. Apart from general physical health, there are different sorts of cognitive functions, not all of which decline at the same rate or are equally relevant to particular jobs. The more bureaucratized and staff-driven various institutions (including the judiciary) become, the less we may care about the ability of an executive, legislator, or judge or justice to do much more than have a general point of view and cast a vote. (Although this seems to me to be mistaken, since one of the things that aging may affect is a person's ability to change his or her mind.) A number of these issues are canvassed in the article by Prof. Shen and in Posner's book. And we ought to be highly skeptical about drive-by diagnoses of specific individuals, regardless of whether they are applied to the current president or to former president Trump or to anyone else--and even if some of those assessments come from professionals in the field, who ought to know better and who are subject to the same political motivations as everyone else.

Still, none of this means that the general question of presidential (or congressional) aging and how to address it, whether as a matter of general law, of more narrow or more abstract policy questions (such as how to structure executive-branch staffing to ensure that we do not have a second Wilson regency or a captive presidency driven by a chief of staff or someone else), or even as a matter of informal "norms," is not worthy of study. (Personally, I would prefer a strong presumptive norm that it is unwise or simply wrong--politically and prudentially wrong and perhaps immoral--for any elected official to seek, or seek to retain, a particularly demanding office past the age of around 65, regardless of who else is in the race.) To the contrary. The complexity of the question seems to demand further study. I would love to see more of it, or even some of it--and soon. 

Posted by Paul Horwitz on August 4, 2022 at 01:41 PM in Paul Horwitz | Permalink


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